Keeping Tabs on the Ninth Circuit
July 29, 2022 - This Week at the Ninth

This Week at the Ninth: Public Fora and Pretrial Disclosures

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This week, the Court wrestles with a thorny First Amendment question that has divided other Courts of Appeals and considers district courts’ ability to impose sanctions under Rule 37(c)(1).

The Court holds that two local officials’ blocking of particular constituents’ comments on the officials’ social media pages violated the First Amendment.

The panel: Judges Berzon, Tallman, and Friedland, with Judge Berzon writing the opinion.

Key highlight: “As this case demonstrates, analogies between physical public fora and the virtual public fora of the present are sometimes imperfect, and courts applying First Amendment protections to virtual spaces must be mindful of the nuances of how those online fora function in practice. Whatever those nuances, we have little doubt that social media will continue to play an essential role in hosting public debate and facilitating the free expression that lies at the heart of the First Amendment. When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them.”

Background: Defendants Michelle O’Connor-Ratcliff and T.J. Zane were members of the Poway Unified School District Board of Trustees. They maintained social media pages first to promote their campaigns for office, and then subsequently to communicate with constituents. Two such constituents, Christopher and Kimberly Garnier, were particularly active critics of the Board. They began posting lengthy and often repetitive comments on the Trustees’ social media pages. Ultimately, both Trustees then blocked the Garniers from making any comments. 

The Garniers responded by filing suit, alleging that the Trustees had violated their First Amendment rights. At summary judgment, the district court concluded the Trustees were entitled to qualified immunity, precluding the Garniers’ damages claims. But the remainder of the Garniers’ claim proceeded to a bench trial, where the court found in the Garniers’ favor and awarded declaratory and injunctive relief.

Result: The Ninth Circuit affirmed. The Court began by rejecting the Trustees’ argument that the Garniers’ claims were moot because the Trustees had begun using word filters that effectively precluded the posting of any new verbal comments. As the Court explained, it was not clear that the Trustees had imposed such filters on all their social media pages, the Garniers were still prevented from posting non-verbal feedback like emoticons, and in any event the Trustees had not established that they might not again change their pages to allow verbal comments.

Next, the Court held that “given the close nexus between the Trustees’ use of their social media pages and their official positions, the Trustees in this case were acting under color of state law when they blocked the Garniers.” The Court emphasized that the social media pages identified the Trustees as government officials and were “overwhelmingly geared toward providing information to the public about the PUSD Board’s official activities and soliciting input from the public on policy issues.” Additionally, by actively engaging with constituents and soliciting their feedback, the Trustees had “invoke[ed] their governmental status to influence the behavior of those around them.” And, the Court continued, the Trustees’ activities on these pages—and particularly their actions in blocking the Garniers—were “linked to events which arose out of [the Trustees’] official status.” The Court rejected the argument that the fact that these pages were started to further the Trustees’ personal campaigns, or that the pages were not supported or authorized by the Board itself, prevented the Trustees’ actions from being attributable to the state. Surveying the decisions of other federal Courts of Appeals, the Ninth Circuit concluded that its approach was consistent with those of the Second, Fourth, and Eighth Circuits (though the Eighth Circuit had rejected a similar First Amendment claim). But, the Court concluded, its reasoning and result were in conflict with a decision from the Sixth Circuit, which “instead of examining a social media page’s appearance or purpose,” “focused on the actor’s official duties and use of government resources or state employees.”

Having found that the Trustees were state actors, the Ninth Circuit also found that their actions violated the First Amendment. The Court reasoned that social media sites “are fora inherently compatible with expressive activity,” and the Trustees’ “social media pages were,” at least initially, “open and available to the public.” As a result, the Court held, the Trustees created “designated public fora” and (following the implementation of word filters on comments) “limited public fora.” And, the Court continued, even assuming that the Trustees’ blocking of the Garniers did not constitute viewpoint discrimination, it did not withstand First Amendment scrutiny because it was not narrowly tailored to serve a significant government interest. The Court held that there was no evidence that the Garners’ comments had “actually disrupted their pages or interfered with their ability to host discussion on their pages,” explaining: “The Trustees’ concerns about the ‘visual clutter’ created by the Garniers’ comments, or the risk that their comments would upset the ‘nice and streamlined’ appearance of their pages, do not on the present record amount to the kind of disruption that alone can support the decision to block the Garniers.” And regardless, blocking the Garniers from leaving any comments, no matter how short, was overly restrictive. Moreover, the Court found, “given their implementation of word filters, the Trustees’ continued ban of the Garniers serves no purpose at all relating to the Garniers’ repetitive comments.”

Finally, the Court rejected the Garniers’ argument that the district court had erred in according the Trustees qualified immunity. As the Ninth Circuit explained, especially given the existing conflict among the Courts of Appeals, no clearly established law had prohibited the Trustees’ conduct. 

The Court reverses a sanctions order excluding particular pieces of trial testimony that had purportedly not been properly identified.

Panel: Judges Callahan, VanDyke, and Ezra (D. Hawaii), with Judge VanDyke writing the opinion.

Key Highlight: “What [Rule 37(c)(1)] does not do is grant the district court broad power to pick and choose portions of witness testimony to exclude as a sanction because it concludes those portions of testimony were not encompassed ‘within the scope of the Rule 26(a) disclosures.’ If there is a rule for that, under its plain text it isn’t Rule 37(c)(1).”

Background: Chase Stewart and Elias Meneses crashed an ATV, crushing Meneses’s arm. Meneses sued Stewart’s parents, Jerry and Yvonne Brodeur, who own the ATV and the nearby family cabin where Stewart and Meneses were staying. Liberty denied the Brodeurs’ claim for the accident under their homeowner’s insurance policy, and sought a judicial determination that the Brodeurs were not entitled to coverage. 

After a bench trial, the district court imposed Rule 37(c)(1) sanctions on the Brodeurs and excluded Jerry Brodeur’s testimony relating to whether the accident might fall into a policy provision covering unregistered vehicles used to service the property. The court reasoned that the Brodeurs’ pretrial disclosures were insufficient to put Liberty on notice of that line of testimony.

Result: The Ninth Circuit reversed, concluding that the district court had abused its discretion in three ways. 

First, Rule 37(c)(1) sanctions were inappropriate because the Brodeurs had properly identified Jerry Brodeur as a potential fact witness. Rule 26(a)(1)(A)(i) requires parties to disclose the name and contact information “of each individual likely to have discoverable information.” Rule 37(c)(1) further provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence . . . at a trial.” The Brodeurs met those requirements, the Court held, by serving Rule 26 disclosures on Liberty that stated both Yvonne and Jerry Brodeur were available to testify “[r]egarding the claims of the underlying case and the damages at issue” and providing their contact information. Rule 37(c)(1) authorizes sanctions only if a party fails to identify a witness or disclose discoverable information, and does not grant the district court power to exclude pieces of testimony on a particular topic. 

Second, the district court also abused its discretion by failing to consider whether any disclosure defects were harmless. Here, the Ninth Circuit concluded, “[i]t seems very unlikely that Liberty was prejudiced or surprised by Jerry Brodeur’s testimony” because it “filed the federal action for the sole purpose of determining whether the Brodeurs were entitled to coverage under the Liberty policy, and even identified the relevant exception in its amended complaint.”

Finally, the district court abused its discretion by failing to consider other factors in excluding Brodeur’s testimony. “When a district court imposes a sanction that amounts to dismissal,” the Ninth Circuit explained, “it is required to consider whether the noncompliance justifying the sanction ‘involved willfulness, fault, or bad faith . . . and also to consider the availability of lesser sanctions.’” The district court did not find that the Brodeurs “acted disobediently, deceitfully, knowingly, or otherwise dishonestly,” but merely that “the disclosures ‘were within their control.” That was not enough to establish bad faith.